defendants' motion for summary judgment is resolved on the merits (if at
all); it is
FURTHER ORDERED that plaintiffs' motion to strike or continue [38-1,
38-2] is DENIED;
FURTHER ORDERED that on or before August 30, 2002, defendants, if they
wish, may file a supplement, if any, to their motion for summary
judgment. Defendant-intervenors shall file their motion for summary
judgment with respect to plaintiffs' first and second causes of action on
the same date. On or before September 20, 2002, plaintiffs shall file a
single opposition to both motions for summary judgment. On or before
October 7, 2002, defendants and defendant-intervenors shall file their
replies. All parties shall comply with the page limits set forth in the
Local Civil Rules.
*fn2 Defendants assert and plaintiffs do not contest that the
administrative record was completed on October 22, 1999. The Court's
records, however, reveal that the administrative record was never filed
with the Court. Defendants promptly should rectify this oversight.
*fn3 In REPs 1, 2, 4, 7, 9, 10, 11 and 15, plaintiffs seek to compel
defendants to supplement their prior discovery responses, and RFPs 1 and
2 only raise the supplementation issue. See Mot. to Compel at 2-4, 6-10,
12-13. In RFPs 6, 8 and 11, plaintiffs state that they can establish that
defendants possess responsive records that are not included in the
record. See id. at 5-7, 10-11.
*fn4 With respect to REPs 7, 9, 11 and 13, defendants object to
discovery because discovery outside the administrative record is not
permitted. See Mot. to Compel at 6-8, 10-11.
*fn5 Plaintiffs seem to suggest that there is something improper about
the way in which defendants created an administrative record based on the
claims raised in this case, rather than simply releasing all of the
documents that the Department of Commerce, NMFS, relied on when making
this decision. So long as the administrative record itself is complete,
boxyever, he procedure followed by defendants is proper. See Richard J.
Pierce, Jr., II ADMINISTRATIVE LAW TREATISE § 11.6 (4th ed.
*fn6 Plaintiffs seeks post-decisional documents in RFPs 1, 2, 4, 7, 9,
10, 11 and 15.
*fn7 These arguments are relevant to REPs 3, 4, 9, 10 13, 14 and
*fn8 Plaintiffs' papers are replete with vagtle references to their
"other claims" under these Acts without further clarification. See
Plaintiffs' Memorandum in Support of Motion to Compel Production of
Documents ("Mem. Mot. to Compel") at 5-6, 8-10, 15; Plaintiffs' Reply
Brief in Support of Motion to Compel and Opposing Protective Order
("Reply to Mot. to Compel & Opp.') at 11-12, 16 see also Plaintiffs'
Motion to Strike or Continue Defendants' Motion for Summary Judgment
("Mot. to Strike or Continue") at 2-3.
*fn9 Plaintiffs seek to challenge the Evolutionary Significant Units
policy and the Artificial Propagation Policy, both of which were utilized
in the ESA listing decision challenged here.